Of drunks and criminal mischief

[LedJedi]

Was having dinner with a fellow CHLer last night and had some interesting debates as always and a few things came up.

1) He mentioned that it was under any circumstance unjustified to use deadly force on the intoxicated as indicated by his CHL instructor. I find that a bit difficult to believe and can't seem to find anything in the penal code about it. It seems to me that if someone is drunk that doesn't negate your right to defend yourself and yours.

2) We were also discussing protection of property and there was some discussion of criminal mischief vs theft. Someone keying your car is I believe criminal mischief. Deadly force is not justified in that incident is it?

These are hypothetical, just curious. I'm especially interested on seeing the legal quotes behind this as I'm not able to locate them at the moment.

[HankB]

Ever hear the term "belligerent drunk?"

Drunks and dopers have no special protection - if you're justified in shooting someone, it's their ACTIONS that provide the justification, not their state of sobriety. (Or lack of same.)

[Xander]

2) We were also discussing protection of property and there was some discussion of criminal mischief vs theft. Someone keying your car is I believe criminal mischief. Deadly force is not justified in that incident is it?

Well, the law says:

P.C. § 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to prevent the other's imminent commission of
arson, burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing
immediately after committing burglary, robbery, aggravated
robbery, or theft during the nighttime from escaping with the
property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

IANAL, but given those restrictions, I think any prosecutor worth his salt could probably get you convicted on a murder charge if you decided to use deadly force against some kid that had just keyed your car.

-Xander

[LedJedi]

IANAL, but given those restrictions, I think any prosecutor worth his salt could probably get you convicted on a murder charge if you decided to use deadly force against some kid that had just keyed your car.

-Xander

ahhh, i guess i missed that "criminal mischief in the night time". I was looking in the area that defined criminal mischief. I should have been looking in the Deadly Force area.

keying your car, certainly. I wonder about someone taking a baseball bat to your car though. In any case it would only be justified in the night time.

I find that rather odd. Why is there a distinction between day and night time crime?

I also note that fleeing with the property is also justification, but I'm assuming that if no property is apparent you would not be justified.

[stevie_d_64]

"reasonably believes" have always been the key words here...As Xander posted the code...

Are any of these situations (as presented) warrant the use of deadly force??? No...

They certainly press the issue, but as it stands, these examples do not meet that criteria...

The advantage you have (and should always have) is that you are in control of your faculties, and have the distinct ability to control, difuse and or deal with it...Hopefully in that order...

Remember, be nice...

[LedJedi]

They certainly press the issue, but as it stands, these examples do not meet that criteria...

Remember, be nice...

Good point on the "reasonably believes".

I think I would personally prefer emptying a can of pepper spray on the kid with a bat, unless he tried turning it on me. There's a lot less paperwork that way. Just wondering where the line of legal justification is.

I want you to be nice...
..untiI it's time to not be nice.
Well, how're we supposed to know when that is?
You won't. I'll Iet you know. ~Road House

[Xander]

keying your car, certainly. I wonder about someone taking a baseball bat to your car though. In any case it would only be justified in the night time.

If they've already hit your car with the bat, then as I read it, you're no longer "preventing the imminent commission of..." but retaliating for, and not justified under the law.

I find that rather odd. Why is there a distinction between day and night time crime?

As I heard it explained (and this was from another non-lawyer, so it may be complete and utter hogwash) the thought was that it's harder to know what you're dealing with in the nighttime. It's inherently more dangerous due to the fact that easier for you to be ambushed or attacked with weapons that may not necessarily be able to see due to the darkness.

I also note that fleeing with the property is also justification, but I'm assuming that if no property is apparent you would not be justified.

That's what I'd assume as well.

Also, remember this thread. http://www.texasshooting.com/TexasCHL_F ... php?t=8547

Even when you believe you're fully justified under the law, a prosecutor (and potentially even a jury) may not feel the same way.

-Xander

[txinvestigator]

2) We were also discussing protection of property and there was some discussion of criminal mischief vs theft. Someone keying your car is I believe criminal mischief. Deadly force is not justified in that incident is it?

Well, the law says:

P.C. § 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to prevent the other's imminent commission of
arson, burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing
immediately after committing burglary, robbery, aggravated
robbery, or theft during the nighttime from escaping with the
property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

IANAL, but given those restrictions, I think any prosecutor worth his salt could probably get you convicted on a murder charge if you decided to use deadly force against some kid that had just keyed your car.

-Xander

The sections you put in red and I increased in size apply to a person escaping with property after committing the crime, and does not include criminal mischief.

Criminal Mischief during the nighttime is a justification for the use of deadly force: when and to the degree he reasonably believes the
deadly force is immediately necessary:


I agree with your assesssment that using DF on a person keying your car most likely does not meet those requirements.

[txinvestigator]

Was having dinner with a fellow CHLer last night and had some interesting debates as always and a few things came up.

1) He mentioned that it was under any circumstance unjustified to use deadly force on the intoxicated as indicated by his CHL instructor. I find that a bit difficult to believe and can't seem to find anything in the penal code about it. It seems to me that if someone is drunk that doesn't negate your right to defend yourself and yours.

2) We were also discussing protection of property and there was some discussion of criminal mischief vs theft. Someone keying your car is I believe criminal mischief. Deadly force is not justified in that incident is it?

These are hypothetical, just curious. I'm especially interested on seeing the legal quotes behind this as I'm not able to locate them at the moment.

As others have mentioned, there is no requirement that you perform sobriety tests on a person trying to kill you before you can protect yourself with deadly force.

[stevie_d_64]

I think I would personally prefer emptying a can of pepper spray on the kid with a bat, unless he tried turning it on me. There's a lot less paperwork that way. Just wondering where the line of legal justification is.

And that very well may be sufficient and appropriate to stop a kid with a bat...Totally agree...

Wondering where that "line" is in other situations...hmmmmm...

Thats going to take longer to figure out than most of us have time on this earth...

But the attempt to define a personal threshold or "line" where you can reasonably determine how and if you should react in certain situations may fit the bill much easier than trying to write down a book of "What If's" and how you'd handle each and every one of those conditions...

I've always believed that those in the CCW community do a great job in that department...Its personal, its custom and no ones "line" is exactly the same...

[pbandjelly]

There's already a legal precedent in regards to the "Baseball Bat to Car"
The shooter was either no-billed, or ruled not guilty.

I don't think there's a legal ramification here, as much as there is a moral quandry. and that's up to the individual.

[txinvestigator]

There's already a legal precedent in regards to the "Baseball Bat to Car"
The shooter was either no-billed, or ruled not guilty.

I don't think there's a legal ramification here, as much as there is a moral quandry. and that's up to the individual.

Of course there is a legal ramification. Regarding your incident; was the victim IN the car, what time of day was it, how many offenders were there, where did the incident take place, was there a history between the suspect and victim, how did the incident take place, on and on and on................

[pbandjelly]

nah nah nah, you know what I'm talking about.
That guy, that shot the drunk/druggie that was messing up his car (I think it was with a chunk of wood?).
middle of the day, that kind of stuff.

maybe ramification isn't the best word, but I meant as far as a "defense to prosecution" goes, it HAS worked.

I'm too distracted by work to find the thread(:lol:), at the moment, or I'd HotLink it for reference.

[seamusTX]

That guy, that shot the drunk/druggie that was messing up his car (I think it was with a chunk of wood?).

I remember that incident. We never got a complete account of what happened. The deceased may have attacked the vehicle owner.

- Jim

[pbandjelly]

never mind.